As the euphoria and celebration come to an end regarding the Kenyan victory over the ICC as stipulated in the amendments to the Rules of Procedure and Evidence (RPE) granting UhuRuto blanket excusal from attending their cases, its time to take a critical look as we always do, at what really happened.
We have read a lot of inputs from different actors and it all boils down to, will Uhuru attend his trial when it starts in February or will the ICC be pressured to grant him excusal from the proceedings? As for Ruto, well that’s a done deal, he will continue to attend to the very bitter end, but we shall nevertheless still consider also whether his continued attendance/presence under the amended RPE is impacted
So first a look at the text
John Dibbley also reminds us to pay attention to the Appeals Chamber ruling and for which the relevant articles under the Rome Statute (RS) used in the rationale remain unchanged, and the possibility that where there is conflict between the RPE vs RS, then the RS prevails.
This post assumes that there is no conflict and that the RPE will be in effect as adopted come February and either the Trial Chamber or Appeals have to make a ruling on excusal
I am drawn to the language in the amendment and its most likely intepretation by the judges
The amended RPE provides for four possibilities
a) accused to attend all sessions
b) 134bis accused attend via video link (this is very precise – see note below) to be decided on a case by case
c) 134ter excusal of accused from attending under exceptional circumstances also to be decided on a case by case
d) 134quater excusal of accused from attending due to extraordinary public duties
Generally speaking attendance is mandatory but lets look at (c). If we review the ruling by the Appeals Chamber reversing blanket excusal granted by the Trials Chamber and directing that the Trial Chamber instead exercises its discretion such that attendance is the norm while excusal is on exceptional basis, and this is soundly backed by various articles in the RS, so therefore options (a) and (c) above are adequately covered by that ruling and therefore in my opinion 134ter offers nothing new. It was already applied by the Trial Chamber and the Appeals Chamber reversed that and there is nothing added
We therefore have options (b) and (d) to consider
Starting with option (b) i.e 134ter – providing an option for the accused to attend via “video link” in my view is a poisoned chalice. Note that comparison is given with a case in which the accused is removed for disruptive behavior and placed under detention at ICC facilities and herein lies the problem. The video conference facility is on premises or within technology provision of ICC, essentially their internal networking.
Now the ICC will need to be protected or insulated for failure resulting from technology failure (poor connectivity, power outage, etc) associated with data transmission across continents. i.e the court cannot be blamed and the accused cannot in turn not blame bad technology for lack of appearance if granted video link – note that audio link would be more reliable, but unfortunately can be faked (for that matter, so can video link) nevertheless, video transmission/conferencing still is quirky and prone to failure, severe lag, etc. The court will therefore have to establish and likely repeatedly test reliability and most likely will have to second an officer to be present on the other side of the transmission for credibility. This method of administration of justice will most likely be an unreliable and expensive undertaking for the courts and hostile to the officer seconded to the remote site. Considering the budgetary constraints, I’d be interested in knowing how the ICC presidency will respond to that possibility. There will be some significant logistical considerations to be taken into account. So 134ter is possible but someone needs to take financial and functional responsibility for the logistics
And then lastly is option (d) – 134quater, this is the so called sucker punch that Kenya will apply for so that Uhuru is excused from attending.
Excusal from presence at trial due to extraordinary public duties
1. An accused subject to a summons to appear who is mandated to fulfill
extraordinary public duties at the highest national level may submit a written
request to the Trial Chamber to be excused and to be represented by counsel
only; the request must specify that the accused explicitly waives the right to be
present at the trial.
2. The Trial Chamber shall consider the request expeditiously and, if
alternative measures are inadequate, shall grant the request where it determines
that it is in the interests of justice and provided that the rights of the accused are
fully ensured. The decision shall be taken with due regard to the subject matter
of the specific hearings in question and is subject to review at any time.”
I believe the judges at the Trial and Appeals Chambers will be required to interpret what constitutes “Extraordinary public duties”
Just like they did with Ruto when granting his excusal, i.e they will have to read the Constitution of Kenya and then tie that into the RS and RPE to make that determination. Granted judicial intepretation is a complex exercise and could go in a lot of different directions, however looking at Ruto’s case, the judges determined that when Uhuru is out of country, then Ruto is required by the law (constitution) to be in country to deputise, and thus far that is how he has obtained excusals
These very circumstances are in fact what sets the stage or framework for what kind of excusal Uhuru can get, i.e it has already been established for a fact that when Uhuru is out, Ruto can deputise.
So the question then is, what are the “Extraordinary” circumstances under which Ruto CANNOT deputise for Uhuru
The Kenya constitution lists these under article 134 (2)
Exercise of presidential powers during temporary incumbency.
(1) A person who holds the office of President or who is authorised in terms of this Constitution to exercise the powers of the President —
(a) during the period commencing on the date of the first vote in a presidential election, and ending when the newly elected President assumes office; or
(b) while the President is absent or incapacitated, or at other times contemplated in Article 147 (3), may not exercise the powers of the President specified in clause (2).
(2) The powers referred to in clause (1) are—
(a) the nomination or appointment of the judges of the superior courts;
(b) the nomination or appointment of any other public officer whom this Constitution or legislation requires the President to appoint;
(c) the nomination or appointment or dismissal of Cabinet Secretaries and other State or Public officers;
(d) the nomination or appointment or dismissal of a high commissioner, ambassador, or diplomatic or consular representative;
(e) the power of mercy; and
(f) the authority to confer honours in the name of the people and the Republic.
Ladies and gentlemen, those listed 6 items are what Ruto as Deputy cannot do, and consists the Extraordinary public duties that only a president can do, and the text does not even provide for extra room using words like “or any other national crisis (manufactered or real)”
So unless these nominations, power of mercy and the conferring of honors are a 10 year continuous/contiguous event, i think our constitution has shot down that possibility.
But then again this is Kenya, anything is possible, so we could set up a situation where we are hiring and firing these civil servants at the rate of 1 per week for the next 20 years.
In conclusion, these amendments have provided some temporary relief and jubilation for the jubilant jubilee crowd, but what really has changed?